The U.S. Supreme Court will hear arguments Nov. 2 on whether the phrase “appropriate relief” in the Religious Land Use and Institutionalized Persons Act (RLUIPA) alerted Texas that accepting federal funds waived its immunity from suits for money damages under the act.

Passed by Congress in 2000, the RLUIPA prohibits government from imposing burdens on worship by persons in prisons or other institutions. Italso gives religious institutions a way to challenge zoning restrictions on the use of their land that they believe are burdensome. Although the case centers on a prisoner, some religious institutions fear that a ruling against the inmate could make it harder for them to fight local zoning regulations. Eight groups have filed amici briefs in the case, one of those for the defense.

The question in Sossamon v. Texas, et al. is whether an individual can sue the state or a state official in his or her official capacity for damages for RLUIPA violations. Plaintiff Harvey Leroy Sossamon, a state prison inmate, alleges that prison policies denied him access to the prison chapel by banning inmates from attending worship services there and denied him the right to attend worship services while on cell restriction.

As noted in the defendants’ brief to the Supreme Court, the state changed its policies after Sossamon filed his suit. Now cell-restricted inmates in the general population can attend worship services at all state correctional facilities. And as of March 6, inmates willing to undergo a strip search are permitted to attend scheduled worship services in a chapel.

Howe & Russell partner Kevin K. Russell of Bethesda, Md., Sossamon’s attorney, says, “From our point of view, the question is whether RLUIPA is a second-class civil rights statute.”

Russell is a lecturer for the Stanford University School of Law Supreme Court Litigation Clinic, which represents Sossamon. He says plaintiffs can be awarded damages for violations of all other major civil rights statutes.

Sossamon argues that the high court has ruled that the same language in other civil rights statutes does put states on notice that accepting federal funds waives their sovereign immunity from suits for money damages. In his brief to the Supreme Court, Sossamon argues that the Supreme Court concluded in 2002′s Barnes v. Gorman that Title II of the Americans With Disabilities Act and §504 of the Rehabilitation Act of 1973 unambiguously provided for damages as remedies. Each authorizes “appropriate relief” against federal funding recipients.

Sossamon also contends in his brief that the Rehabilitation Act Amendments of 1986 independently put the state on notice that it was subject to the same damages remedy as private defendants under any “statute prohibiting discrimination” by recipients of federal funds.

Texas Solicitor General James C. Ho will argue for the Sossamon defendants at the Supreme Court. Texas Office of the Attorney General spokesman Tom Kelley declines a request to interview Ho.

The defendants argue in their brief to the Supreme Court that, to establish a waiver of the state’s sovereign immunity from his claims for damages, Sossamon must identify “unmistakably clear” statutory text that put state officials on notice that by accepting federal funding, they consented to suits for money damages. That is not possible under the RLUIPA, which creates a private cause of action for “appropriate relief against a government,” the defendants contend.

“The phrase ‘appropriate relief’ is a textbook example of ambiguity — not unmistakable clarity,” the defendants allege in their brief.

The defendants also argue that 1986′s Rehabilitation Act Amendments do not apply to Sossamon’s claims because §3 of RLUIPA, which applies to institutionalized persons, does not prohibit discrimination. They argue that §3 requires favorable — not equal — treatment.

Defendants in Sossamon in addition to the state are Christina Melton Crain, the Texas Criminal Justice Board’s former chairwoman; Cathy Clement, former assistant director of the Texas Department of Criminal Justice Correctional Institution Division Region VI; Brad Livingston, TDCJ executive director; Doug Dretke, the Correctional Institution Division’s former executive director; and Robert Eason, a former senior warden of TCDJ’s French M. Robertson Unit.

Clear as Mud

Sossamon petitioned the Supreme Court for a writ of certiorari in May 2009 after the 5th U.S. Circuit Court of Appeals affirmed the judgment of the U.S. District Court for the Western District of Texas in Austin in favor of the defendants.

As noted in its Feb. 17, 2009, opinion, the 5th Circuit found, among other things, that “RLUIPA is clear enough to create a right for damages . . . but not clear enough to do so in a manner that abrogates state sovereign immunity from suits for monetary relief.” The 5th Circuit held that Sossamon’s claims for monetary relief from Texas and its officers in their official capacities are barred. The 5th Circuit also “decline[d] to find any authority for individual-capacity actions in the statute.”

At the Supreme Court’s invitation, the United States submitted an amicus curiae brief in which the government contends, “If damages are unavailable in actions against States and their officials, RLUIPA’s enforcement will be significantly undermined.”

U.S. Department of Justice spokeswoman Tracy Schmaler confirms in an e-mail that Sarah Harrington, assistant to the U.S. solicitor general, will argue before the Supreme Court in Sossamon, but Schmaler declines a request to interview Harrington.

Of the eight amici briefs submitted to the Supreme Court, one supports the defendants’ position. Florida Attorney General Bill McCollum submitted an amici brief, in which he is joined by the attorneys general of 29 other states.

That brief alleges, “The Amici States did not anticipate that the broad term ‘appropriate relief’ in the Religious Land Use and Institutionalized Persons Act (RLUIPA) would waive their sovereign immunity to damages actions. To subject the States to damages actions on the basis of the ambiguous phrase ‘appropriate relief’ would offend well-established principles of federalism and stare decisis.”

The National Association of Evangelicals, represented by Plano-based Liberty Institute, alleges in its amicus brief supporting Sossamon that the RLUIPA is of “vital importance” to its constituents, because the federal law is “the most effective, and sometimes the only effective, means available” to protect religious ministries from local governments that have an incentive to “quell” the ministries with land-use regulations to attract businesses that generate tax revenue.

Kelly Shackelford, Liberty Institute’s chief counsel, says that while the arguments being made in Sossamon are in the context of the prisoner’s suit, the 5th Circuit’s opinion, if it stands, will apply across the board to religious groups as well as institutionalized persons.

“The ruling could do great harm to the protections for religious organizations, which were a huge part of the reason it [RLUIPA] was passed in the first place,” Shackelford says.

He says, “The law’s not very useful if you can’t get damages.”

But University of Texas School of Law professor emeritus Doug Laycock, a religious liberty scholar, says he is not optimistic that the Supreme Court will rule that an individual can sue a state or state officials for monetary damages.

“It’s a tough sell on this court,” says Laycock, now a professor at the University of Virginia School of Law.

Laycock says that for the past 35 years, there continuously has been a 5-4 split on the high court in support of the states’ immunity from suits for damages. “Sovereign immunity is like an article of faith for the five conservatives on the court,” he says.